Monday, August 11, 2008

This post is from TSA's Chief Counsel Francine Kerner. It was originally intended to be a response in the comments section to answer some ID questions, but we thought it deserved its own post. Thanks to Francine for taking the time to provide this well thought out and very informative response.

I would like to share my perspective of this issue and my legal analysis. From my perspective, in considering these matters, we need to go back to first principles: what security goals are we trying to achieve? One goal is to ensure that bad things are kept out of the sterile area. Another goal is to ensure that known or suspected terrorists are kept out of the secure areas of the airport and off airplanes. We simply do not want to provide a terrorist with access to the aviation transportation system to plan, plot or carry out criminal acts.

To achieve the first goal, keeping out bad things, we perform a physical examination of passengers, employees and other individual who enter the secure areas of the airport. We also perform a physical examination of their property. Sometimes these security measures take place at the checkpoint. Sometimes they take place at other entrances to the airport.

To achieve the second goal, prohibiting entry by known or suspected terrorists (regardless of what they are carrying), we perform or cause others to perform an identity check against government databases. Identity vetting of airport or airline employees is a rigorous process that is based on a collection of fingerprints, a criminal history records check, and a security threat assessment.

Of obvious necessity, identity vetting of passengers is handled differently. I think of it as a two-step process, a responsibility shared between the air carriers and TSA. The air carriers compare a passenger's name to government watch-lists, while TSA ensures that the name provided to a carrier, as reflected on the boarding pass, matches the ID that the passenger is carrying.

It is instructive to note that before September 11, under government directive, air carriers were required to check a passenger's name against government watch-lists and confirm a passenger's identity by examining specified forms of identification.

Over the last year or more, TSA has taken over the identity verification process, stationing TSOs before the checkpoint to perform this function. More recently, TSA has determined that passengers who fail to show ID must otherwise assist in confirming their identity before being permitted sterile area entry. All of these steps have been taken to improve aviation security. Real ID and Secure Flight are other government programs that will continue to strengthen the identity vetting process.

As Chief Counsel, I firmly believe that TSA's ID requirements are warranted from a security perspective and entirely legal. Under a TSA regulatory provision, 49 C.F.R. § 1540.105(a)(2), a person may not enter the sterile area “without complying with the systems, measures, or procedures” applied to control access to the restricted area in question. Verifying the identity of passengers who access the sterile area falls within this rubric and is, in fact, part of TSA’s screening process. It is true that an earlier regulatory provision, 49 C.F.R. § 1540.5, which sets forth definitions, states that access to the sterile area is “generally” controlled through the “screening” of persons and property and that “screening function means the inspection of individuals and property for weapons, explosives, and incendiaries.” The definition of “screening function,” which focuses on physical inspection—the most intrusive form of screening—cannot be read to limit the Administrator’s broad expanse of authority under the operative language of section 1540.105(a)(2) to establish “systems, measures or procedures” governing sterile area access, including an ID screening process. Certainly, the common definition of screening encompasses methods other than physical intrusion. One definition of screening listed by Google reads as follows: “Is the person on a watch-list? Biometric information can be used to determine if a person is cleared to be in a restricted area, or if the person is on a watch list (eg the FBI Most Wanted list).” Similarly, under section 1602(a)(5) of the 9/11 Implementation Act, H.R. 1, the definition of cargo “screening” includes methods other than physical inspection. Given the Administrator’s fundamental statutory responsibility pursuant to 49 U.S.C. § 44901 to secure the aviation transportation system, a unduly narrow construction of § 1540.105(a)(5) cannot be justified.

I hope my response furthers the dialogue on these important issues. Thank you again for raising your concerns.